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Similar to Chapter 14 fourteen depositions civ lit 2nd
Similar to Chapter 14 fourteen depositions civ lit 2nd (9)
Chapter 14 fourteen depositions civ lit 2nd
- 2. A Unique Form of Discovery
An opportunity to ask questions of
parties OR witnesses (lay or expert)
May choose to observe the way a
witness or party answers
Demeanor
Level of comfort
“Jury appeal”
Evaluate the presentations of both sides
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 2
- 3. Paralegal Duties
Schedule depositions
Calendar for all attorneys
Subpoena witnesses
Notify parties
Schedule a court reporter
Reserve a location
Attend & take notes (noting demeanor,
body language of both sides)
Prepare a digest of the deposition
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 3
- 4. Other Paralegal Duties
Listen, observe, take notes
Be sure
Proper notice has gone out
Client, witnesses, attorney & court reporter
know how to get there
Be there early to
Review set-up (where are the restrooms?)
Greet clients & witnesses
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 4
- 5. Types of Depositions
Depositions before filing a complaint
Limited circumstances, by motion
Obtain information necessary to preparing a
complaint
Deposition on Written Questions
Questions are prepared in advance, posed by the
court reporter
Limited use, usually when travel is a hardship
Doesn’t require attorneys to be present
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 5
- 6. Oral Deposition
Attended by the parties, lawyers, witness, court
reporter
Witness is asked questions by an attorney under
oath
Response is similar to a trial situation response
Objections can be made for the record
Must give reason
Witness will answer, subject to a judge later sustaining
the objection
Paralegal notes responses, inconsistencies
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 6
- 7. Videotaped Depositions
Oral deposition, recorded as a video,
rather than written, transcript
May be done in anticipation of a witness
becoming unavailable to testify at trial
Physical illness or disability
Travel limitations
Experts with scheduling difficulties, cost
factor of personal appearance in court
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 7
- 9. Uses of Depositions
Opportunity to hear the other side’s version of
the events
Evaluate the effectiveness of witnesses
Exposes the client to a more hostile form of
questioning, similar to cross-examination
Preserves testimony in case the witness
becomes unable to testify
Even if oral, not videotaped
Unforeseen difficulty
As long as both sides had the opportunity to ask questions
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 9
- 10. Impeachment
If the deposition differs
From previous material given under oath
(interrogatories, affidavits)
From testimony in court
Raises doubts about the
Truthfulness of the witness
The accuracy of the witness’s recall
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 10
- 11. Notice
Notice of Deposition adequate for parties,
counsel, court reporting service to attend
Subpoenas required for witnesses
Duces tecum, if documents are required
A court order, subject to penalties for contempt of
court
Served by the same means as a complaint
Adult to adult
Residence or usual place of business
May require a witness fee
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 11
- 12. Court Reporter
Notified by Notice of Deposition
May conduct the deposition on written
questions without attorneys present
Will administer the oath
Needs
Date, time, location
To know the type of equipment required
A fee
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 12
- 13. Preparation
Review the file
Review with the client
Prior statements
Reports
Police
Accident
Insurance
Investigators
Medical personnel
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 13
- 14. Questions
Discuss the types of questions
Open-ended, narrative
Closed-ended
Leading
Discuss objections
May choose to practice
If client is unusually shy or apprehensive
To prepare for the rougher questions of an
adversary
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 14
- 15. Deposition Advice
Dress appropriately Be on time
Don’t talk over anyone – court If you respond, it is assumed you
reporters can only follow one understood the question and are
speaker at a time responding to it
Listen to the question If you don’t understand a question,
ask for it to be rephrased
Don’t guess If you don’t know an answer, say “I
don’t know.”
Don’t argue Tell the truth
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 15
- 16. Deposition Scope
Permits questions asked of the other
side’s witnesses, even if they have been
hostile to previous efforts
Can seek information that would be
objectionable at trial, if it can be shown to
possibly lead to admissible evidence
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 16
- 17. Deposition Digest
Will aid in trial (potential impeachment)
Should be prepared while still fresh in the mind
Integrate notes & mark transcript (or video
location by footage) for important concepts
Electronic transcripts are more easily searched
& coded
Include background information on the
witnesses (a computer search may help)
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 17
- 19. The “Usual Stipulations”
Will frequently include a waiver of the right
to review & correct
If the usual stipulations are not adopted
The transcript should be reviewed with the
witness
The witness should suggest corrections, if
necessary
The witness should sign the transcript with the
corrections made
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 19